"Protect IP Act" Gives Government Power to Seize Websites On a Whim

by Paul Joseph Watson
July 6, 2011

Law professors warn that new legislation allows state to seize websites merely for linking to other websites that host copyrighted material.

New legislation that would give the US government the power to seize website domains on a whim with no oversight merely for linking to sites that host copyrighted material has been labeled a hallmark of, “repressive regimes” by a group of law professors who warn that the bill allows the state to “break the Internet addressing system”.

Protect IP Act Gives Government Power

to Seize Websites On a Whim

The Protect IP bill, currently stalled in the Senate, represents a death blow to Internet freedom of speech.

It would turn the entire web into a clone of the YouTube model, which routinely censors and deletes material when requested to by governments or corporations and shuts down user channels without recourse.

The legislation merely codifies what Homeland Security is already practicing, seizing and shutting down websites without any form of legal proceedings and in many cases not even notifying the owner.

In an open letter penned by Professor Mark Lemley of Stanford University, David S. Levine of Elon University and David G. Post of Temple University, they warn that the bill would require Internet hosting companies and search engines to de-list entire websites on the basis of a mere copyright claim by a copyright holder, with no independent or legal process undertaken.

Even linking to a website that copyright holders claim is in violation of intellectual property laws would be grounds for the feds to seize your domain and impose criminal penalties.

“At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, the [Protect IP Act] would incorporate into U.S. law - for the first time - a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law,” states the letter.

Suggesting that removing websites with no oversight whatsoever is a clear violation of constitutional law as interpreted by the Supreme Court, the professors add that the bill would hand government the power to,

“break the Internet addressing system.”

“It requires Internet service providers, and operators of Internet name servers, to refuse to recognize Internet domains that a court considers “dedicated to infringing activities.”

But rather than wait until a Web site is actually judged infringing before imposing the equivalent of an Internet death penalty, the Act would allow courts to order any Internet service provider to stop recognizing the site even on a temporary restraining order or preliminary injunction issued the same day the complaint is filed.

Courts could issue such an order even if the owner of that domain name was never given notice that a case against it had been filed at all.”

Search engines, credit card companies and even advertisers would then be mandated to refuse to deal with the owners of the site under the proposed law, making it,

“extraordinarily difficult for advertisers and credit card companies to do business on the Internet.”

As we have exhaustively documented, proponents of web regulation like Senator Joe Lieberman have openly stated their intention to create a Communist Chinese-style system of Internet policing, handing Obama the power to block entire areas of the web with a figurative kill switch.

Indeed, Amazon’s Cloud network notoriously deleted the entire Wikileaks website from its servers following a phone call made by Senator Joe Lieberman’s Senate Homeland Security Committee demanding the website be axed:

Lieberman spilled the beans on the true reasons behind the move towards web censorship during a CNN interview when he stated,

“Right now China, the government, can disconnect parts of its Internet in case of war and we need to have that here too.”

During a more recent interview with the network, Lieberman labeled claims that he was working to create an,

“Internet kill switch” as “misinformation,” yet went on to repeat the same statement that the US government needs the power to “disconnect parts of its Internet in a case of war.”

Of course as we have proven, China doesn’t disconnect the Internet “in case of war,” it only ever does so to censor and intimidate people who express dissent against government atrocities or corruption.

This is precisely the kind of online environment western governments are trying to replicate as they attempt to put a stranglehold on the last bastion of true free speech - the world wide web.

Read the full letter here.

Internet Takeover

New legislation Would Allow State to Arbitrarily Shut Down and Seize Websites
by Ethan A. Huff

staff writer
July 26, 2011

from NaturalNews Website

Freedom of speech is under attack once again as the bloated US federal government continues its quest to destroy the last bastion of free and open communication - the internet.

Sen. Patrick Leahy's (D-Vt.) "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property" bill, also known as the Protect IP Act, is more oppressive and restrictive to free speech than even communist China's internet censorship protocols, and a group of law professors recently wrote an open letter warning that the bill would allow the government to freely pull websites without any proper legal restrictions.

Last November, we reported that the US Department of Homeland Security (DHS) had already begun seizing website domains and ordering that they be shut down permanently for supposed copyright infringement - and the agency did this apart from due process or a proper trial .

No law or legal precedent permitted this rogue agency - which is a tyrannical spawn of post-9/11 hysteria that is not even constitutionally legitimate to begin with, by the way - to undergo its website seizing operation. The agency simply decided to break the law and do as it pleased.

Now, certain members of Congress are pushing to turn this oppressive, illegal tyranny into law through the Protect IP Act, which by all appearances is even more severe than Senate Bill (SB) 3804, the "Combating Online Infringement and Counterfeit Act," or COICA.

Though it is currently stalled in the Senate, according to a recent (above) report, the Protect IP Act may eventually get passed under the radar, and eventually turn the internet into a government-run propaganda tool similar to network and cable news.

"At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, the [Protect IP Act] would incorporate into US law - for the first time - a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law," says a portion of the open letter.

You can view a a leaked draft of the Protect IP Act.

Protect IP Act a Trojan Horse bill to hijack control over the internet

Like most other pieces of legislation that infringe upon freedom, liberty, and the US Constitution, the Protect IP Act is dressed in language that may initially appear to benefit society.

After all, protecting intellectual property from theft will help ensure that private enterprise flourishes, right? Indeed it will, but the provisions of the Protect IP Act completely bypass due process, and do not even allow website owners a fair trial - the bill basically gives the federal government arbitrary power to shut down websites that it feels are an "infringement."

In much the same way, the "Patriot Act," which is dressed in nice-sounding language about protecting Americans from terrorism, is another Trojan Horse bill that was designed to completely thwart the rule of law.

Ironically, its provisions desecrate the very constitutional protections that were put in place to protect Americans from things like the Patriot Act.

A cursory glance at the language in the Protect IP Act reveals that "Internet site[s] dedicated to infringing activities," which are the subjects of government targeting, is very broadly defined. And because of this broad language, third-parties like ad networks, payment processors, search engines, and even internet service providers (ISPs) are pulled into the crosshairs of government censorship as well.

And since the bill would require no independent investigation or proper trial prior to enforcement to verify that any laws had actually been broken, the US government would thus have the perceived authority to target practically any website, or party connected to that website, that it chooses to, without any checks and balances or restraint.

When taken to its logical end, DHS would have the power to censor search engine results, for instance, on the basis that sites with "infringing activities" may show up in the query results.

Worse, the bill contains language that gives private copyright holders,

"additional, extraordinary and unnecessary powers to stifle new technologies and innovation," according to techdirt.com

This means that the Recording Industry Association of America (RIAA), for instance, the music recording industry group that targeted and essentially destroyed the infamous Napster music service years ago, could take advantage of the bills provisions and use the government as its personal enforcement agency to restrict whatever websites it deems a threat to its interests.

Do not be fooled by misguided rhetoric or even the bill's creative title. The Protect IP Act is ultimately not about protecting intellectual property, but is instead about legitimizing control and censorship of the internet by an overbearing central government.

You can contact your representatives and urge them to oppose the Protect IP Act by visiting: http://www.congress.org/

Full Text Of The PROTECT IP Act Released

- The Good, The Bad And The Horribly Ugly -
by Mike Masnick
May 11, 2011

from TechDirt Website

Yesterday, we got our hands on a leaked copy of the "summary" document put together by those writing the new version of COICA, now renamed the much more media friendly PROTECT IP Act.

It looked bad, but some people complained that we were jumping ahead without the actual text of the bill, even if the summary document was pretty straightforward and was put together by the same people creating the bill.

Thankfully, the folks over at Don't Censor the Internet have the full text of the PROTECT IP Act, which I've embedded below as well.

Let's break it down into the good, the bad and the horribly ugly.

The Good

It looks like the drafters clearly heard some of the complaints that many have raised concerning the attacks on due process and free speech and have scaled some of them back (though, not as much as they want you to believe - but we'll get to that).

Officially, the bill limits the "definition" of what constitutes a site dedicated to infringing activities.

While COICA (Combating Online Infringement and Counterfeit Act) clearly focused on the domain names as the party, PROTECT IP also recognizes that regular lawsuits should be brought against those responsible, rather than just focusing on taking down the site (in legal terms, it requires an "in personam action" - against the person - be filed before an "in rem action" - against the property).

This could, in theory, provide more due process for those running such sites. The bill also attempts to make it clear that, officially, PROTECT IP does not expand secondary liability.

In addition, the bill would require that the Attorney General (or the copyright holder) send notice to those impacted "upon commencement" of such actions. This is an improvement. Today, with domain seizures, it takes weeks or sometimes months for site owners to be given notice. On top of that, PROTECT IP no longer includes the ability to go to domain registers and registrars and require them to remove domains or hand them over to the government.

Finally, it attempts to narrow the scope of what qualifies as being covered by the act under the phrase "dedicated to infringing material."

The Bad

When you dig into the actual text, nearly all of these "good" changes are either not really true, or are greatly limited by other aspects.

On the "limit" to the definition of what sites qualify, it's still incredibly broad:

The term "Internet site dedicated to infringing activities" means an Internet site accessed through a specific domain name that has no [substantial/significant] use other than, or is designed, operated, or marketed by its operator persons operating in concert with the operator, [and is in fact,] primarily as a means for --

enabling or facilitating the reproduction, distribution, or performance of copyright works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, or offering goods or services in violation of section 1201 of title 17; or

enabling or facilitating sale, distribution, or promotion of goods, services or materials bearing a counterfeit market, as that term is defined in section 34(d) of the Lanham Act;

[provided that there is no objectively reasonable interpretation of an express license between the owner or operator of such Internet site and the copyright owner or trademark owner or an agent thereof that authorizes the activities;]

That's somewhat narrower than COICA's terminology, which is here:

For purposes of this section, an Internet site is 'dedicated to infringing activities' if such site-

‘‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323; or

‘‘(2) is--

‘‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer--

‘‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or

‘‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d)); and

‘‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

Narrower? Sort of... but still quite open and vague.

Under the new definition, it seems you could still claim that a service like YouTube (especially in its early days) could have run afoul of this law. If this had been in effect a decade ago, we might not have a YouTube today. Think about that for a second... It also seems like nearly all music blogs are illegal under this definition. That doesn't seem good.

As for requiring an in personam action, which in theory would allow for a court hearing and the individuals or companies who operate sites targeted by this bill to get a fair hearing before the site is taken down or otherwise blocked or limited, there's a pretty big loophole there.

It says that if either the Attorney General or the copyright holder "was not able to find" the registrant or owner of the site or "no such person found has an address within a judicial district of the United States," then they can skip the whole in personam action and jump straight to the in rem action, against the website itself.

That's a pretty big loophole.

As for the promise that it doesn't expand secondary liability, that's nice to say but it's simply untrue.

By its very nature, the entire purpose of the bill is to extend secondary liability to third parties that had previously been almost entirely immune from such liability: ad networks, payment processors, search engines and ISPs now face liability if they do not disconnect service from certain websites.

That is, without a doubt, a pretty massive expansion of secondary liability, no matter how many times the drafters of this Act insist it's not.

The whole thing about no longer going directly after domains via registrars and registers is a red herring. As is clearly noted in the summary, the whole reason for this is because the drafters figure this is redundant, since ICE has already shown with Operation In Our Sites that it can already seize such domains. So, it can "give this up" without really giving it up at all (though, potentially this leaves the government open to a loss in court on this issue).

Also bad is that the bill clearly encourages service providers to take "voluntary" action against sites that those providers deem to be infringing.

The bill provides specific liability protection, so that if these providers cut off service to a site under the incorrect belief that it was dedicated to infringing activities, there's no remedy for those sites.

The Horribly Ugly

The PROTECT IP Act includes, as mentioned, a "private right of action," which COICA did not contain.

This lets copyright holders make use of some of the aspects of the Act, which are completely unnecessary, considering they already have reasonable options under existing laws. This is yet another case of regulatory capture, in which a private industry is being granted additional, extraordinary and unnecessary powers to stifle new technologies and innovation, because in their estimation it infringes on their copyrights.

Remember the long list of new innovations that the entertainment industry has so deemed, including (but not limited to):

player pianos

radio

cable TV

the photocopier

the VCR

the DVR

the MP3 player

YouTube, etc.

Haven't we learned by now that every time the industry screams that it's being harmed by infringement, the reality is almost always something entirely different?

Also on the "horribly ugly" side of things is the extension of this bill to cover search engines.

That is, when the Attorney General uses the law, one of the things that can be done is obtaining an order saying search engines must no longer link to certain sites. This seems like a massive form of meddling in how a search engine operates. I also can't see how it could survive First Amendment scrutiny. It's a blatant case of the government telling a search engine what it can and cannot link to in its index.

Similarly, remember that part in "the bad" section about voluntary actions? In the section on such voluntary actions in the bill, not only does it include search engines (i.e., this is the government urging search engines to censor on the copyright industry's behalf), but it also includes domain registers and registrars - who, you may recall, had been left out of the other parts of the bill.

So despite most of the bill not applying to them, domain registers and registrars are now encouraged to simply take down sites on a voluntary basis, if they believe they're dedicated to infringement.

And if they do so, they are immune from liability for damages caused. In other words, pretty much any domain can be disappeared by its register or registrar with little real recourse, and, in fact, there is encouragement for this to happen.

All in all, it's clear that the drafters of this bill sought to cut off some of the biggest criticisms that were raised last time, in hopes of appeasing enough critics to get this passed, but left in plenty of loopholes and added some even worse parts to the bill as well. It's a bad bill by any measure and should not become a law.

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